Transcript Avoidance Strategies

Most Frequently Issued
FAA Part 135 Violations
Paul A. Lange, Esq.
Law Offices of Paul A. Lange, LLC
Stratford, CT and New York, NY
Overview and Structure
• What Joe Conte and I each do, and how it
affects what we present to you
• How each of our statistics are derived
Vast majority of reported Part 135 air carrier enforcement
action case law involves recordkeeping.
• The underlying allegations arise in many
areas, but often in operations and
maintenance recordkeeping, drug and alcohol
testing, and training
• Increasing TSA enforcement, typically
involving recordkeeping as well; HAZMAT
cases continue
Recordkeeping’s slippery slope
• When does a recordkeeping error become
intentional falsification?
• Falsification = Emergency Revocation
• Usually against both the air carrier certificate
and against the individual certificates held by
the individuals involved
Quick primer on the elements of
intentional falsification
• A false representation
• In reference to a material fact
• Made with knowledge of its falsity
AIR CHARTER SUMMIT
NATA 2011
JOSEPH A. CONTE
ENFORCEMENT DIVISION
FAA OFFICE OF THE CHIEF COUNSEL
COMMON MISTAKES BY AIR CARRIERS
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DRUG AND ALCOHOL TESTING
MAKING EXCUSES THAT MAKE IT WORSE
RECORDKEEPING: MAINTENANCE/OPS
READING SAFETY RULES OUT OF CONTEXT
DRUG AND ALCOHOL TESTING
• PRE-HIRE/PRE-TRANSFER TESTING
• PERMANENT BARS FOR INDIVIDUALS WHO TEST
POSITIVE TWICE
• REASONABLE SUSPICION v. SICK OUT
• SAFETY SENSITIVE “DUTY”: SPOTTERS FOR PILOTS
WEARING NVGs; WEIGHT AND BALANCE
CALCULATORS; CHIEF PILOT
• DUTY TO SEEK INFO FROM PREVIOUS EMPLOYERS,
INCLUDING SELF.
MAKING EXCUSES THAT MAKE IT
WORSE
• HIRED MECHANIC BEFORE RECEIVING A
VERIFIED-NEGATIVE DRUG TEST AND
MECHANIC SIGNED OFF ON AIRCRAFT:
DEFENSE WAS THAT THE MECHANIC DID NOT
DO ANY MAINTENANCE ON THE AIRCRAFT,
JUST SIGNED OFF FOR DIRECTOR OF
MAINTENANCE: FALSIFICATION?
IMPORTANCE OF RECORDKEEPING.
RECORDKEEPING
• MAINTENANCE: Why ‘who’ signs off matters.
• MAINTENANCE: SHOULD STORE AND
ORGANIZE FILES ON AN AIRCRAFT BY
AIRCRAFT BASIS WITH DESCRIPTIONS OF THE
METHODS AND TECHNIQUES USED TO
MAINTAIN THE AIRCRAFT.
READING SAFETY RULES OUT OF
CONTEXT
• FAILING A CHECK RIDE IN A TWIN-ENGINE
AIRCRAFT.
CAN THE PILOT
CONTINUE TO OPERATE A SINGLE-ENGINE
AIRCRAFT IN PART 135 OPERATIONS?
Should 135.293(b) be read alone or should it
or must it be read with 135.301(b)?
READING SAFETY RULES OUT OF
CONTEXT
• FLIGHT AND DUTY.
AIR CARRIER HAD A PRACTICE OF HAVING ITS
INSTRUCTOR PILOTS TEACH IN A SIMULATOR X DAYS PER WEEK AND FLY
THE LINE THE REMAINING DAYS. THOSE PILOTS NEVER GOT A DAY OFF.
FAA SAID THAT VIOLATED THE “24 IN 7” RULE.
• CARRIER READ A FEW SENTENCES IN ONE INTERPRETATION OUT OF
CONTEXT. IGNORED SCORES OF OTHER INTERPRETATIONS, INCLUDING
INTERPRETATIONS THAT CITED THE INTERPRETATION-IN-QUESTION, FOR
THE OPPOSITE RESULT. IGNORED
• PURPOSE OF ONE DAY OFF IN SEVEN: FIGHT CUMULATIVE FATIGUE.
READING SAFETY RULES OUT OF
CONTEXT
• 15 HOUR 50 MINUTE NONSTOP FLIGHT. 4- PILOT
CREW.
• ADEQUATE SLEEPING QUARTERS: WHERE? MIDDLE
COACH SEAT BETWEEN TWO PAXs? IS THAT EVEN AN
ADEQUATE REST FACILITY?
• NEW ARGUMENT: THE SAFETY RULES SPECIFICALLY
DIRECTED TO 4-PILOT CREWS ARE EXCLUSIVE OF
RULES THAT APPLY TO ALL PILOTS REGARDLESS OF
THE NUMBER OF PILOTS IN A CREW.
How do you avoid these problems
altogether, and fix those that you do have?
• Avoidance Strategies
• Voluntary Disclosure Reporting Program
(VDRP)
Avoidance Strategies
• Attention to detail - be persnickety
• Always question whether there's anything else
that you should be doing with respect to your
recordkeeping - are you sure it's "bullet
proof"?
• Audit/test your own recordkeeping systems
periodically
Avoidance Strategies
• Ensure that all recordkeeping is compliant with FAR
requirements.
• Random drug/alcohol testing pool hypothetical:
– Two separate corporate entities with two separate Part
135 Certificates; some overlap in ownership.
– Pilot employed by both entities (and actively flying for
both entities) is inadvertently included in the random
testing pool for only one of the 135 Certificates.
– Technical violation of FARs, even if actually tested with
negative test results.
Solution: Employ good recordkeeping practices to ensure no
lapse of pilot enrollment/inclusion in random testing pools.
Avoidance Strategies
• What if operations cannot be conducted in a manner
compliant with FAR Part 135?
• DO NOT reclassify operations under Part 91 (unless
actually within confines of Part 91)!
– Administrator v. Jetsmart, Inc. and Howe, NTSB Order No.
EA-5572 (Feb. 2011).
• Involved, in part, transportation for compensation/hire from
Rochester, NY to Bridgeport, CT
• BDR runway of insufficient length for Part 135 operations in
particular aircraft
• Jetsmart employee testified that flights were classified in records
as Part 91 to avoid runway length restrictions
Avoidance Strategies
– Jetsmart’s defense under Hart with respect to issues of
“knowledge” failed
• ALJ determined that “Howe’s testimony that he did not intend to
include references to part 91 on the flights logs and flight duty
records was not credible.”
• Also telling that Jetsmart still assessed and collected excise taxes
for operations, despite position that flights were operated under
Part 91.
• Falsification resulted in revocation!
Voluntary Disclosure Reporting Program
(VDRP)
• Advisory Circular 00-58B
• Attention to detail in following the
requirements
• Risk versus reward analysis
VDRP and Prosecutorial Immunity?
• Recent NTSB case law has considered whether ALJ
must consider affirmative defense of immunity under
VDRP.
– Administrator v. Moshea:
• NTSB Order No. EA-5328 (Oct. 19, 2007):
– Affirmed ALJ’s refusal to consider affirmative defense.
• U.S. Court of Appeals for DC Circuit, 570 F.3d 349 (2009):
– Vacated NTSB decision and remanded.
• NTSB Order No. EA-5523 (June 10, 2010).
– Remanded to ALJ for consideration of affirmative defense and
reconsideration of sanction.
• Current status: defense of immunity is not absolute
and disclosure must strictly adhere to requirements of
AC 00-58; appears that ALJ must at least consider.
Conclusion
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Attention to detail
Periodically test/ audit your own systems
Quickly fix problems found while they’re small
Follow VDRP AC even if it doesn’t apply or if you
ultimately choose not to disclose- it provides a
solid framework/ checklist to use in avoiding
recurrences as well as new problems
• Also helps in your defense should the FAA come
knocking